Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ex parte N.E.

Court of Appeals of Texas, Twelfth District, Tyler

April 25, 2018

EX PARTE: N.E.

          APPEAL FROM THE 349TH JUDICIAL DISTRICT COURT ANDERSON COUNTY, TEXAS (TR.CT.NO. DCCV17-318-349)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          GREG NEELEY JUSTICE.

         The Texas Department of Public Safety appeals the trial court's order granting an expunction of N.E.'s arrest for "attempted prohibited substance in a correctional facility." In a single issue, DPS contends the trial court should not have granted the expunction. We reverse and render.

         Background

         N.E. was arrested on August 25, 2009, and subsequently charged with "prohibited item in a correctional facility" that was alleged to have occurred on or about March 31, 2009. Pursuant to a plea agreement, N.E. pleaded "guilty" and the court sentenced her to three years deferred adjudication community supervision. N.E. successfully completed all three years of her community supervision.

         In May 2017, N.E. filed a motion to expunge all criminal records and files relating to the March 31, 2009 charge and deferred adjudication. In her motion, she alleged that she successfully completed her pretrial agreement with the Anderson County District Attorney's Office. Following a hearing in which DPS did not participate, the trial court granted N.E.'s petition. This restricted appeal followed.

         Expunction

         In its only issue, DPS contends N.E. was not entitled to have her arrest record expunged because she served community supervision as a result of the arrest.

         Standard of Review

         A party can prevail in a restricted appeal only if (1) it filed notice of the restricted appeal within six months after the judgment was signed, (2) it was a party to the underlying lawsuit, (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. See Tex. R. App. P. 26.1(c), 30; Ins. Co. of State of Penn. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009). For purposes of a restricted appeal, the face of the record consists of all papers on file in the appeal, including the reporter's record. Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Flores v. Brimex Ltd. P'ship, 5 S.W.3d 816, 819 (Tex. App.-San Antonio 1999, no pet.).

         We review a trial court's order granting or denying a petition for expunction under an abuse of discretion standard. See Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.-Austin 2002, pet. denied). A trial court abuses its discretion if it acts "without reference to any guiding rules or principles." E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). If an expunction ruling turns on a question of law, we review it de novo because a "trial court has no 'discretion' in determining what the law is or applying the law to the facts." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A trial court abuses its discretion if it misinterprets or misapplies the law. Id.

         Governing Law

         Although the law that governs expunctions is part of the code of criminal procedure, an expunction proceeding is civil in nature and is governed by the rules of civil procedure. See Carson v. State, 65 S.W.3d 774, 784 (Tex. App.-Fort Worth 2001, no pet.). Expunction is not a constitutional or common law right, but purely a statutory privilege. Tex. Dep't of Pub. Safety v. Nail,305 S.W.3d 673, 675 (Tex. App.-Austin 2010, no pet.). The trial court must strictly comply with statutory requirements, and has no equitable power to extend the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.